Matthias Ruziwa HR Issues
“It is the essence of a contract of master and servant that the servant should submit to the direction of the employer and obeys his employer’s instructions not only in the things he has to do but as to the time and manner in which he has to do them.”
Subordination to the employer’s lawful orders is a fundamental ingredient of the contract of employment without which it cannot exist. Professor L Madhuku says: “Labour law is concerned with labour work which is done in a position of subordination, that is, when an employee works under the command, the control and the authority of an employer, when the work is not carried out in a position of subordination, as in the case of self-employment, labour law does not apply.”
In this article, the writer looks at what defines employee transfers, reasons why employees deny transfers, and how our courts have dealt with disputes regarding transfers. Yoder et al (1958) define transfer as “a lateral shift causing movement of individuals from one position to another usually without involving marked change in duties, responsibilities, skills needed or compensation”.
A transfer may be initiated either by the employer or the employee.
Transfers are generally envisaged in contracts of employment, codes of conduct and employers’ policies. Transfers are affected to build up a more satisfactory work team and to achieve the following purposes; to increase the effectiveness of the organisation, to increase versatility and competence of key positions, to deal with fluctuations in work requirements, to correct incompatibilities in employee relations, to correct erroneous placement, to relieve monotony etc.
Employees have a tendency of refusing transfers and I highlight below some of the reasons associated with transfer refusals.
a) “On 23 November 2012, the appellant received a letter from the respondent’s legal practitioners. It was therein alleged that the respondent’s employment contract specifically appointed him to the position of general manager, Rainbow Towers Hotel and Conference Centre and that no provision was made therein for transfer within the group. In addition, the appellant, so it was alleged, was aware that the respondent’s wife required specialist medical care and facilities which are not available in Victoria Falls. It was advised that the respondent could not accept the transfer.” See Rainbow Tourism Group v Nkomo SC 47 /2015.
b) “The appellant wrote back to the Director of Finance making his submissions against the transfer. The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold but did not say for how long”. See Gurava v Traffic Safety Council of Zimbabwe, SC 30 /08.
c) “The respondents were however disturbed and not amused by the impending transfers. They thus vigorously objected to the transfers citing personal hardship and inconvenience. In their concerted effort to resist and abort the intended transfers they roped in the services of lawyers”. See National Employment Council for the Catering Industry v Richard Kundeya and others.
In most cases employees refute transfers whereas they forget that they are legally bound by the transferability clauses in respective employment contracts. Such conduct undermines and paralyses the employer’s work thereby constituting a fundamental breach of the contracts of employment.
By refusing to go where the employer’s work is to be performed, the employee virtually render himself or herself incapable of performing the employer’s work thereby repudiating the contract of employment.
Some employers actually view such conduct as failure to take lawful orders given by the employer which constitutes summary dismissal from employment if proven guilty of committing the offence.
At this juncture, I would like to strongly advise employees to fully read and understand the contents of their employment contracts and related workplace codes of conduct and policies with regards to the transfer aspect as ignorance would not be considered as an excuse in a court of law.
In Rainbow Tourism Group v Nkomo SC 47 /2015, the Supreme Court Judge remarked as follows; “The respondent was the general Manager of the Rainbow Towers and it seems childish to submit, as he did, that he was ignorant of the Code because it was not given to him. In his position, he would have been responsible for drawing the attention of subordinate employees to the code of conduct.
It would be an affront to intelligence to say that he remained, and was content to remain, blissfully unaware of its contents throughout the period of his employment with the appellant which spanned two years. The same would, in my opinion, apply to any code applicable to executives if that were applicable to the respondent.
Accordingly, the respondent cannot take refuge in the defence raised to the effect that: “I am not bound by it because I did not see it because you did not give it to me”.
It must be noted that whereas transfer is the employer’s prerogative, the employee has the right to be heard before the transfer is implemented. In Gurava v Traffic Safety Council of Zimbabwe, SC 30 /08, the Supreme Court remarked as follows,“It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer.
It is the employer who knows better where the services of an employee are required.
The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown.
Good cause in the circumstances, while not easy to define, would include such matters as unfounded allegations, victimisation of the employee and any disadvantage. The reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant’s objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.
The employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services for the employer wherever such services are required, unless the employment contract stipulates that he is to be employed and remain at a specific place only. See Ngema & Anor v Minister of Justice, Kwazulu & Anor 1992 (4) SA 349 (N).
While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied that, since the respondent did not compel the appellant to go on transfer before he was heard, but deliberated on the issue before re-affirming its previous decision, the requirement of the audi alteram partem rule was complied with.”
Learned Judge Chiweshe J in Judgement No HB 7 /05 remarked that “In her founding affidavit the applicant states that she first heard of the proposed transfer through rumours. She confirmed these rumours when she sought audience with first and third respondents.
She indicated to both verbally and informally her reservations. The first and second respondents should have taken steps to formalise these communications and in particular invite the applicant to make written representations thereto.
The applicant had a legitimate expectation to be consulted about the proposed transfer and to be heard. The failure to give effect to this legitimate expectation constitutes an irregularity of such a magnitude as would justify an order setting aside the transfer on the grounds that the rules of natural justice have been abrogated.”
In the matter between Taylor v Minister of Higher Education 1996 (2) ZLR 772 (5) and 777H), GUBBAY CJ stated as follows: “In general, one thinks that professional employees of long standing, holding senior posts, would not be transferred without account paid to their stated personal situations and wishes.”
He further stated that “The general rule is that once a decision has been reached in violation of natural justice, even if it has not been implemented, a subsequent hearing will be no meaningful substitute.
“The prejudicial decision taken will be set aside as procedurally invalid. In this way, the human inclination to adhere to the decision is avoided.”
Let me conclude by saying that transfer of employees is certainly the employers` prerogative as clearly shown in the authorities cited above.
Nevertheless, due cognisance must be given to the right of employees to be heard before a transfer is implemented. This will avoid unnecessary hick ups in the event of a dispute being referred to the courts.
Disclaimer: Opinions expressed herein are solely those of the author. Matthias Ruziwa is an experienced Arbitrator and progressing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe. You can contact Matthias at the following email address: [email protected] /WhatsApp 0773 470 368